‘The Unlawful Combatants Law is administrative detention with even less protection for detainees than the restrictive regime in the West Bank,’ HRW director said.
This detention term imposes the burden on the detainee to prove that they are not a threat, instead of placing the burden of proof on the state authorities, as international human rights law requires
Israeli occupation authorities arrest Gaza residents under vague terms, Human Rights Watch (HRW) said, describing them “violation of rights.”
In a statement, the HRW said that the obscure detention terms “strips away meaningful judicial review and due process rights.”
The statement issued in coordination with the Gaza-based rights group Al-Mezan, the HRW said that Israel has detained 18 Palestinian residents of Gaza under the “Internment of Unlawful Combatants Law” since its 2005 disengagement with the Gaza Strip.
“A Beersheba district court on December 16, 2016, issued a second six-month renewal of the detention of Munir Hamada, the only person currently detained under the law,” the statement said.
“The court accepted the government’s determination that he was a threat based on a secret Israeli intelligence report that was not made available to Hamada’s counsel,” the rights groups said. “Israel also continues to hold hundreds of Palestinians from the West Bank, including East Jerusalem and Israel in a different form of administrative detention without charge.
“The court’s continued application of the Unlawful Combatants Law against Hamada evidences the judiciary’s role in providing legal protection for Israel’s policies in the occupied Palestinian territory that violate international law,” said Issam Younis, director of Al-Mezan Center for Human Rights.
“This law provides the Israeli military with a legal framework to incarcerate civilians without the protections pertaining to fair trial and based on mere suspicion, not evidence. This law needs to be abolished.”
Enacted in 2002, amended in 2006
The Knesset enacted the Unlawful Combatants Law in 2002, in part to permit the prolonged detention without charge of two Lebanese nationals after the Supreme Court held in 2000 that the Israeli military could not hold Lebanese detainees solely as “bargaining chips” for the return of missing Israelis.
However, the statement added: “But Israeli officials have since used the law to detain Palestinians from Gaza for renewable periods.”
The law, amended on July 30, 2008, permits the chief of the general staff of the Israel Defence Forces to incarcerate a person based on “reasonable cause” that “he is an unlawful combatant and that his release will harm national security.”
The law defines an unlawful combatant as a person “who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel.”
The law provides that an Israeli civilian court must review the incarceration order within 14 days and subsequently every six months and entitles the detainee to appeal the district court’s decision to the Supreme Court.
The law’s presumptions, though, constrain the scope of the judicial review even more than under the restrictive administrative detention system that the Israeli military government in the West Bank and Israeli criminal law impose on Palestinians in the West Bank and Israel.
The 2002 law states that the court presumptively accepts the Defence Ministry’s finding that the organisation in question is a “hostile” force and that membership makes the detainee “a person whose release would harm state security.”
How it works
These presumptions impose the burden on the detainee to prove that they are not a threat, instead of placing the burden of proof on the state authorities, as international human rights law requires.
The secrecy of the evidence makes it virtually impossible for the detainee to meaningfully challenge the allegations.
In addition, the scope of the court’s review in a detention renewal hearing is limited to determining whether the authorities’ use of discretion was reasonable, which is even further limited by the law’s presumptions.
“The Unlawful Combatants Law is administrative detention with even less protection for detainees than the restrictive regime in the West Bank, leaving almost no basis for judges to void intelligence agency decisions,” said Sarah Leah Whitson, Middle East director at Human Rights Watch.
She added: “Although only a single Palestinian from Gaza is currently held under the Unlawful Combatants Law, it provides the Israeli authorities with expansive detention power to use whenever they choose.”
(Source / 02.03.2017)